Public employee strikes are underway in the Detroit Public
Schools and at Eastern Michigan University. As is often the case in such
disputes, the strikes are accompanied by heated and contradictory rhetoric from
all directions. Under such circumstances, it is timely and instructive to look
at what Michigan law actually says about such strikes.

Fortunately, the law is clear: These strikes are illegal
and the courts are under an obligation to order school teachers and university
faculty back to work.

For starters, strikes do not constitute free speech. State
legislatures, therefore, are free to restrict its public employees from
striking, and Michigan has done just that. The Public Employment Relations Act
states explicitly that "A public employee shall not strike ..."

The law goes on to say that:

A public school
employer may bring an action to enjoin a strike by public school employees ...
in the circuit court for the county in which the affected public school is
located. A court ... shall grant injunctive relief if the court finds that a
strike ... has occurred, without regard to the existence of other remedies,
demonstration of irreparable harm, or other factors. Failure to comply
with an order of the court may be punished as contempt. In addition, the court
shall award court costs and reasonable attorney fees to a plaintiff who prevails
in an action brought under this subsection.

Clearly, under any fair reading of the law, public employee
strikes are illegal in Michigan, and a judge is legally obligated to issue an
injunction when they occur. Moreover, the school district is entitled to
attorneys’ fees from the union for having to go to the trouble of involving the
judiciary.

Courts, however, initially resisted this language out of a
stated concern that the law creates a separation of powers issue — that is, the
Legislature’s actions are binding the judicial branch. This was precisely a
court’s stated concern in the
ongoing Detroit strike, where the judge refused
for days to issue an injunction and decided instead to hear evidence of
potential harm to the school district if the strike continues — something
clearly uncalled for by the statute. Only a judiciary that has lost its
perspective could claim the law violates the separation of powers doctrine. It
is the role of the Legislature to pass laws. It is the role of judiciary to
apply these laws to the facts of individual cases.

The failure of the judiciary explains, in part, why strikes
and threats to strike continue to occur. During negotiations in Holland in September 2005, a Michigan Education
Association representative told The Grand Rapids Press that "There has been some
discussion about the issue (striking).... Teachers would consider a walkout if the
school board imposes an illegal contract." The Press reported that the union
would consider "illegal" any contract that did not come about as a result of
collective bargaining. Likewise, the Ironwood Education Association reportedly said that it was considering undefined "job actions" after rejecting a contract.

Unfortunately, even if the judiciary were to terminate a
strike, it is still just the beginning of a school board’s problems. Before it
can discipline teachers that took part in the illegal strike, the board must
conduct hearings for every individual employee, and these findings are then
subject to judicial review. Given the number of hearings required, it is
difficult, expensive and time consuming for a school board to fire or otherwise
penalize illegally striking employees. The existing penalties will not serve as
a deterrent to public sector strikes until the Legislature gives school board’s
a way to practically implement them.

During contract negotiations in Brighton, for
example, enough teachers reportedly called in sick on May 5 to require the
school district to cancel classes. Despite the school board’s perception that
this action was an intentional sick-out, disciplinary procedures were dropped in
order to come to an agreement on the contract. Making it even more
difficult for school boards is the fact that if the Michigan Employment
Relations Commission determines that the school district committed an unfair
labor practice during negotiations, the commission may, despite the illegality
of the teachers’ strike, order reinstatement of a teacher that was fired for
striking.

Nationally, the number of teacher strikes has fallen from
241 in 1975 to 99 in 1991 to only 15 in 2004. With at least two public employee
strikes underway, Michigan once again finds itself on the cutting edge of a
trend it can ill afford to lead.

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Thomas W. Washburne is director of labor policy for the
Mackinac Center for Public Policy, a research and educational institute
headquartered in Midland, Mich. Permission to reprint in whole or in part is
hereby granted, provided that the author and the Center are properly cited.